Unlike my ancient predecessor, this Tullius hasn't had his hands chopped off. With hands attached I offer my thoughts on philosophy, religion, politics, and whatever else I find worth mentioning. I'm conservative religiously and politically (though I have some serious libertarian leanings). I value reason and freedom but also traditions and "Oldthink." I relish being on the wrong side of history when history is wrong--part of a philosopher's job is to be unpopular.

Sunday, May 4, 2014

Would Jesus Support the Death Penalty?

Jonathan Merritt, writing for The Atlantic, asks, "Would Jesus Support the Death Penalty?" For Christians, the question is equivalent to, "Would God Support the Death Penalty?" which raises the more general question, "Should We Support the Death Penalty?"

What do we mean by this question? We might be asking whether capital punishment (CP) is permissible (in theory) or whether it's intrinsically wrong. We might be asking whether it's not only permissible, but also obligatory. We might also be asking whether, even if permissible, CP is overall good or better than alternative punishments for certain crimes. Or we might be skipping past these questions to the question of whether we should vote for legislators who would implement it.

That it's permissible (in theory) seems to be well supported by the following propositions, one of which only believers in the Western faiths will find appealing:

1. In the Old Testament, God assigns capital punishment for certain offenses; thus there have been times when CP is permissible; thus, in theory, it's permissible.
2. If one knowingly murders an innocent person, one gives up one's right not to have one's life taken in return; if one gives up one's right not to have one's life taken in return for a murder, then CP is permissible in theory; thus CP is permissible in theory.

I find 1 and 2 hard to resist, but Merritt seems opposed to them and against CP in theory as well as in practice. Let's see some of his evidence against it:

Christians who support the death penalty often cite passages from the Old Testament that allowed for capital punishment. But Jesus told his followers not to observe the Jewish law that allowed for retributive justice: “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.”

As theologian Benjamin Corey says, “It is not possible to argue a Christian case in support of the death penalty while citing passages from the Hebrew scriptures, because this will put one at odds with Jesus himself.”

Theologian Benjamin Corey appears to be flirting dangerously close to Marcionism: Is it "not POSSIBLE to argue [for] a Christian case in support of the death penalty while citing passages from Hebrew Scripture"? Surely that is putting things too strongly. Here are possible interpretations of Jesus's remarks on lex talionis, not all of which seem impossible to square with a proper interpretation of the Old Testament:

1. Jesus is denying that retributive justice is permissible.
2. Jesus is denying that retributive justice is obligatory.
3. Jesus is denying that retributive justice is obligatory and permissible.
4. Jesus is denying that retributive justice is obligatory and permissible for individuals not acting in the capacity of a state official.
And so forth.

My own view, which I shall not argue for here, is that Jesus is denying that one should ever act simply for the sake of retribution. Jesus is focusing on the heart and the reasons why we do things. He is against a certain mindset of reciprocity. If that is correct, then Jesus is not here denying that it's ever permissible for a state to put people to death (which is a good thing, since the opposite would be hard to square with Romans).

Many forget that Jesus once served as a one-man jury on a death-penalty case. In a famous New Testament story, an adulterous woman was dragged to Jesus’ feet. The woman was guilty of a capital offense and had been caught in the act by at least one witness. The law mandated her death but Jesus prescribed a different response: “Let whoever is without sin cast the first stone.” He was teaching that only a perfect being—only God—should have power over death and life.
The problem with taking this passage to rule out CP gets to a problem that CP abolitionists almost always ignore in this discussion: If this story rules out CP, it would seem to rule out all punishments as well. Let those of you without sin sentence someone to life in prison. Let those of you without sin sentence someone to five years in prison. Let those of you without sin.... I take that as a reductio ad absurdum of the argument which interprets the passage as condemning any instances of CP.

There’s no reason to believe that Jesus or these early Christian leaders would feel any different about the matter today with our broken justice system. The most reliable predictor of whether someone will be sentenced to death is not the amount of evidence, but the race of the victim. Geography is also an important factor, which is why a handful of counties are responsible for most of the executions in the United States. And then of course wealth is a factor, as almost all death-row inmates could not afford their own attorney.

No doubt race and money have some influence in legal matters (but the statistics he cites fail, by themselves, to give an actual argument that the explanation for the majority of the statistics is unjust discrimination). But of course there are all sorts of irrelevant factors that influence prosecutors and juries: how attractive one is, whether one shows emotional displays of empathy in the court room, whether one is a woman (far fewer women convicted of murder receive the death penalty compared to men), and so on. But this does nothing to show that CP, any more than any other punishment, is impermissible. At best, what the statistics show (if they can show that there is unjust discrimination), is that there are jurisdictions which need to correct their punitive practices more generally.

There are also practical reasons to oppose the death penalty. [TB: Wasn't the stuff about race a practical reason?] Studies show that death-penalty cases are as much as 10 times more expensive to adjudicate than comparable cases. And the risk of executing a person unnecessarily is real.
Of COURSE it costs more to adjudicate CP cases, but that's a GOOD thing. The reason it costs more is because of all the appeals, appeals which are there to make sure the person is guilty. Yes, "the risk of executing an [innocent] person unnecessarily is real," but so the risk of imprisoning a person FOR LIFE who, unlike the person on death row, is not afforded multiple appeals.Following Claiborne’s encounter with Haslam, I joined Claiborne in visiting death-row inmates atRiverbend Maximum Security Institution. I spent more than an hour conversing with these men, four of whom have execution dates scheduled. I could feel the weight of desperate prayers and desperate pleas of desperate prisoners.While I sat talking with them, Dear’s words came to mind: “Killing people who kill people is not the way to show that killing people is wrong.”

Question: Would they have been praying if they were sentenced to life in prison? Perhaps we'll never know, but the above should dispel the notion that there is any merit to the argument that some U.S. Christians give about "needing more time to repent."

It is true that murdering people who murder people is not the only way to show that murdering people is wrong. One could also show that murder is wrong by having them watch a murder on Youtube. (Of course, most people don't NEED to be shown it's wrong to know that it's wrong!) But not punishing people EVER (which Merrick's argument seems to entail) is also not a way to show people that what they did was wrong. What eliminating punishments would do is to mislead people into thinking that actions don't have consequences.

It brings to mind one of the best scenes from Breaking Bad (no major spoilers here):

So do I believe in CP? Yes, I guess I do. I think it should be rare. It should only be for acts so heinous that society puts its ultimate stamp of diapprobation on them as a way of standing in solidarity with those who have received horrific acts of injustice. Stoning to death for prostitution wouldn't meet that bar; but abducting, torturing, shooting, and burying alive a teenage girl would.

2 comments:

In your little spat about being permissible in theory, I don't think 2 is as self-evident as it's put. Just because someone murders an innocent person doesn't mean one gives up one's right not to have one's life taken in return. It would seem that that premise is in the same bind as number one; only those who hold to the Western faiths (generally) would accept that premise.

Also, I find this statement a little uneasy: "Yes, 'the risk of executing an [innocent] person unnecessarily is real,' but so the risk of imprisoning a person FOR LIFE who, unlike the person on death row, is not afforded multiple appeals." Would it not be better to take that chance away and imprison for life? I'm not willing (personally) to take that chance. When dealing with matters of life or death (and the emotional trauma for the individual and loved ones of those who really are innocent [but we don't know yet]), it would seem better to not play games and sentence to life in prison.

Finally, I don't think Merritt is advocating for the complete dissolving of punishment. I think he would advocate for punishment; he is just speaking out against the death penalty. He seems to maybe suggest life imprisonment or the like.

I do believe in the death penalty in theory (as discussed in point 1 of your theory section); however, I'm not convinced that the death penalty (as it is currently practiced) is truly how it should be done. Maybe we should seek for reform. I would personally advocate for being against it. There just seems something fishy (beyond what I have already discussed); these are just my initial thoughts.

Interesting thoughts. Here are a few comments about each of the issues you raise...

The principle behind 2 is as follows: if x wrongs y by some action A of some degree n, x deserves punishment P of severity n proportional to that of A. The basic idea is that one deserves a proportional punishment for a crime that is committed. (An alternative theory of punishment would be purely correctional and utilitarian--desert drops out of the picture. And I would add, the notion of justice drops out of the picture).Now I will agree with you to this extent about Western/non-Western cultures: historically matters of justice have not been put in terms of losing rights. Talk about rights is a fairly modern way of speaking which is often abused today (though one can make an argument that the Latin jus sometimes functions to express the concept of a right). But I believe in rights so that's why I put things the way I did. Nonetheless, I'd be happy to cast things simply in terms of desert and duties and would stick by the above claims salva veritate. Both Western and non-Western cultures have employed the death penalty and for actions far less severe than taking the life of another by burying someone alive. When Jesus speaks against the code of reciprocity in the Sermon on the Mount he is speaking against a background of peoples who would've had no problem with the death penalty for things other than murder.

Regarding the risk of an execution of an innocent vs. the risk of life imprisonment of an innocent: though execution is (at least typically) a greater punishment than life in prison, the risk of putting an innocent in jail for life is greater than putting someone to death because the person on death row has mandatory appeals. Plus, with things like DNA evidence today, the risk is even lower than in the past. If there's more risk in the U.S. today of getting a verdict wrong than in times past, it's news to me.

Just to be clear, I didn't say that Merritt is advocating for the complete dissolution of punishment; I said that is what his line of reasoning seems to entail. He seems to be advocating the following thesis:If there is a risk of punishing an innocent A with a punishment of severity n, one should opt for giving A punishment n-1 instead. But since there's ALWAYS a risk of mistakenly punishing an innocent, if we run that principle for each case there will be no punishments given at all. So I would ask Merritt, if he is not advocating that thesis, then what is it exactly about capital punishment such that no risk whatsoever should be tolerated? If someone pleads guilty (or there's an overwhelming amount of evidence) that one abducted, tortured, shot, and buried alive a girl, what is the principle such that it's impermissible to sentence the person to death given the bare possibility that one could be wrong?

As far as the death penalty as currently practiced is concerned, I'd want an argument for why and how it should be reformed. (Presumably we'd have to take this on a state by state basis, since the practice will vary state to state). And I'd also want an argument for why the practice regarding the death penalty should be the focus, rather than, say, life in prison and the penal system more generally. Of course, Merritt isn't doing that here--he's making sweeping claims about the practice of CP in general (because, it seems to me, he's flat out opposed to it, but on the basis of no good reasons that I can discern).